Greyhound Lines, Inc.

National Labor Relations Board - Board Decisions

Jul 20, 1987

284 N.L.R.B. 1138 (N.L.R.B. 1987)

1138 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Greyhound Lines, Inc.' and Detriot Fast Food
Workers, a Council of United Labor Unions.
Case 7-CA-17986
20 July 1987
DECISION AND ORDER
CHAIRMAN DOTSON AND MEMBERS JOHANSEN
AND STEPHENS
On 2 September 1981 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Charging Party filed exceptions and a supporting
brief, and the Respondent filed an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findMgs, 2 and
conclusions as modified and to adopt the recom-
mended Order.
In 1979 and 1980 the Union attempted to orga-
nize employees of the Burger King facility owned
by Greyhound Food Management located in the
bus terminal owned and operated by Respondent
Greyhound Lines in Detroit, Michigan. The Union
failed to receive a majority of the votes cast in a
Board representation election held among Burger
King's employees on 22 February 1980, but it
thereafter filed timely objections to the election as
well as unfair labor practice charges against Burger
King. On 25 June 1980 the Regional Director for
Region 7 issued an amended complaint in the
unfair labor practice case and an order consolidat-
ing it with the representation case. 3 Following issu-
ance of the complaint against Burger King, the
Union demanded immediate recognition and bar-
gaining to begin on 2 July 1980. When Burger
The name of the Respondent appears as amended at the hearing.
2 The Charging Party has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 Fid 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re-
versing the findings.
In sec. III, par. 2, of his decision, the judge inadvertently referred to
the date the Charging Party Med a petition for certification as 10 Decem-
ber 1977. The correct date is 10 December 1979.
In sec. III, par. 13, of the judge's decision, the sentence beginning
"There is no evidence to indicate what portion of Respondent's custom-
ers consists of off-the-street traffic" should read "There is no evidence to
indicate what portion of Burger King's customers consists of off-the-
street traffic."
3 In the unfair labor practice proceeding emanating from Burger
King's campaign conduct, the General Counsel sought a bargaining order
as a remedy for Burger King's unlawful conduct. On 30 September 1981
the Board issued its decision in Burger King, 258 NLRB 1293 (1981),
enfd. mem. sub nom. NLRB v. Greyhound Food Management, 709 F 2d
1506 (6th Cir. 1983), in which it granted the General Counsel's request
for a bargaining order.
King refused to bargain, the Union began picketing
the Respondent's Detroit terminal on 3 July 1980.
The Respondent's terminal had three pedestrian
entrances and a bus entrance and exit. The main
entrance to the bus terminal was located on Con-
gress Street. The Burger King had a separate en-
trance directly from Congress Street as well as an
entrance from inside the terminal.
The Union placed pickets at each of the three
pedestrian entrances to the Respondent's terminal,
at the entrance and exit to the bus drive, and at the
entrance to the Burger King restaurant directly
from Congress Street.
The pickets carried signs and/or distributed leaf-
lets urging customers not to patronize Burger
King, because Burger King had been found guilty
of unfair labor practices by the Board and was un-
lawfully refusing to bargain with the Union. At ap-
proximately 10:30 a.m., Daniel Cantor, the Union's
organizer, and three other non-Burger King em-
ployee pickets4 entered the terminal and began
picketing and handbilling outside Burger King's
terminal entrance. The pickets were almost imme-
diately approached by a security guard, who forc-
ibly evicted Cantor from the terminal. Cantor reen-
tered the terminal and told the Respondent's termi-
nal manager that he had a right to picket inside the
terminal. Thereafter, Cantor was escorted from the
terminal by a Detroit police officer. The pickets re-
sumed patrolling outside the terminal for the re-
mainder of the day.
Cantor testified that approximately 85 percent of
Burger King's customers entered the restaurant
through the entrance inside the terminal. Burger
King's general manager testified that marketing
surveys show that 14 percent of Burger King's cus-
tomers are customers of the Respondent. He also
testified that 60 percent of Burger King's off-the-
street customers enter the terminal through the
main entrance and then enter the restaurant
through its inside terminal entrance, and that 35
percent of the off-the-street customers enter the
Burger King through its street entrance.
The judge dismissed the complaint. The judge
found that the handbilling and picketing inside the
terminal was undertaken in furtherance of the
Union's attempt to seek recognition and bargaining,
but the intended audience was Burger King's cus-
tomers, not its employees. He found that although
this activity was protected, in order to determine
whether this statutory right was preeminent to the
Respondent's property right, he was required to ex-
4 The pickets outside the terminal were off-duty Burger King employ-
ees, employees of other fast food restaurants, and members of other
unions.
284 NLRB No. 123
GREYHOUND LINES 1139
amine whether the inside terminal picketing was
necessary. The judge found that there were rela-
tively short distances between the street entrance
to the terminal and the lobby entrance to the res-
taurant and people were not it „Ale terminal long
enough to have a diminished awareness of the mes-
sage they received from the picketers upon enter-
ing the terminal. Thus, the Union's message was
not diluted by time or distance. The judge there-
fore concluded that it was unnecessary for the
Union to augment its exterior picketing by interior
picketing in order to convey a meaningful, undilut-
ed message to its intended audience.
Subsequent to the judge's decision, the Board
issued Fairmont Hotel, 282 NLRB 139 (1986),
where it held that in cases involving conflicts be-
tween property rights and Section 7 rights, the
Board's task is "first to weigh the relative strength
of each party's claim." The Board stated (id. at
142):
If the property owner's claim is a strong one,
while the Section 7 right at issue is clearly a
less compelling one, the property right will
prevail. If the property claim is a tenuous one,
and the Section 7 right is clearly more compel-
ling, then the Section 7 right will prevail. Only
in those cases where the respective claims are
relatively equal in strength will effective alter-
native means of communication become deter-
minative.
As noted by the judge, the Union's Section 7 ac-
tivity here reflected an unfair labor practice and re-
cognitional objective vis-a-vis Burger King's em-
ployees. The immediate objective of its activity
inside and outside the Respondent's terminal on 3
July 1980, however, was to communicate with
Burger King's customers, rather than its employ-
ees, and to induce the public to boycott Burger
King. Furthermore, the Burger King employees
were not themselves on strike or participants in the
picketing and handbilling attempted inside the Re-
spondent's terminal. The activity inside the termi-
nal involved individuals who were not asserting
their own Section 7 rights. The strength of the
Section 7 rights asserted was further diminished be-
cause the picketing took place not on the property
of Burger King, the employer with whom the
Union had the dispute, but on the property of
Greyhound Lines, the Respondent, an employer
not involved in any dispute with the Union. Al-
though the picketing inside the terminal was not
carried on in a disruptive manner, the fact that it
was done on the Respondent's property, rather
than on Burger King's property, tends to enmesh
neutrals in the dispute.
Balanced against the Union's less than compel-
ling Section 7 right is the Respondent's property
right. Here, although the bus terminal is open to
the public, the Respondent has an interest in keep-
ing its property free from picketing against another
employer. The terminal was particularly crowded
at the time the picketing occurred because it was
the beginning of a holiday weekend. Due to the
congested conditions, the Respondettt has an inter-
est in controlling the activity taking place inside its
terminal.
Applying the Fairmont analysis to the facts of
this case, the panel members disagree in their initial
assessment of the relative weight of employer and
employee interests involved. 5 We agree, however,
that the Union's Section 7 claim is not clearly more
compelling and that, assuming the relative equality
of these interests, the General Counsel has failed to
prove that the Union did not have reasonable alter-
native means to communicate its message to the
public. The Union was permitted to conduct its
protest at the terminal's outside entrances. Approxi-
mately 60 percent of the restaurant's off-the-street
customers enter the terminal through the Congress
Street main terminal entrance and walk only a
short distance through the terminal to the restau-
rant's terminal entrance. Another 35 percent of the
restaurant's off-the-street customers enter through
the restaurant's Congress Street entrance. Thus, the
Union's picketing at the terminal's Congress Street
entrances would reach a majority of the restau-
rant's off-the-street customers. Those restaurant
customers who work in the terminal building could
also have been reached when they arrived at work
that day by the Union's picketing at each of the
terminal's exterior entrances. Thus, under the cir-
cumstances of this case, the Union was able, by
picketing only at the terminal's exterior entrances,
5 Chairman Dotson notes that under the prevailing view of the majori-
ty opinion m Fairmont, an initial assessment of the relative weight of
competing claims is made without any consideration of whether a union
had reasonable alternative means for communicating its message. Where,
as here, he would find that the Respondent's property rights outweigh
the Union's Sec. 7 claim, it is not necessary to evaluate alternative means
and the Board should dismiss the complaint. Assuming arguendo the rela-
tive equality of the competmg claims asserted here when initially assessed
under Fairmont, the Chairman agrees with the finding that the General
Counsel failed to prove that the Union did not have reasonable alterna-
tive means to communicate its message.
Unlike his colleagues in the Fairmont majority, Member Johansen does
not evaluate the Sec. 7 claim apart from the factor of reasonable alterna-
tive means of communication. Rather, he views this factor as significant
m assessing the nature and strength of the Sec. 7 claim. Fairmont, supra
at 143. He agrees, however, that both property and Sec. 7 interests assert-
ed in this case are otherwise relatively weak and agrees with both his
colleagues that the General Counsel failed to prove that the Union did
not have reasonable alternative means of communicating its message to
its target audience. Finding that this factor is determinative on these
facts, he joins his colleagues m fmdmg that the Respondent's private
property interests were not required to yield to the Union's Sec. 7 claim
and, accordingly, in dismissing the complaint.
1140

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adequately to communicate its message to the res-
taurant's potential customers.
We conclude that under the circumstances of
this case, the Respondent's property right out-
weighs the Union's Section 7 right. Accordingly,
we find that the Respondent did not violate Sec-
tion 8(a)(1) of the Act by causing the removal of
the Union's picketers and handbillers from inside its
terminal lobby. We shall therefore dismiss the com-
plaint.
ORDER
The recommended Order of the administrative
law judge is adopted and the complaint is dis-
missed.
MEMBER STEPHENS, concurring.
The facts in this case warrant dismissal of the
complaint under both the majority rationale in
Fairmont Hotel and my separate concurring opinion
in that decision. Accordingly, I join in adopting the
judge's order of dismissal.
Ellen Rosenthal Esq., for the General Counsel.
John L. Johnson, Esq., of Phoenix, Arizona, for the Re-
spondent.
Chui Karega, Esq., of Detroit, Michigan, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. Witics, Administrative Law Judge. Pursu-
ant to an unfair labor practice charge filed by Detroit
Fast Food Workers, a Council of United Labor Unions
(the Charging Party), against Greyhound Bus Lines, Inc.
(Respondent), a hearing in this matter was held May 6,
1981, in Detroit, Michigan, on a complaint issued by the
Acting Regional Director for Region 7.
On the entire record,' including my observation of the
demeanor of witnesses, and consideration of posthearing
briefs, I make the following
FINDINGS OF FACT
I. BUSINESS OF THE RESPONDENT
At all times material, Respondent, a California corpo-
ration, has maintained its principal office and places of
business located at Greyhound Tower, Phoenix, Arizona,
and also has maintained a terminal at 130 E. Congress
Street, Detroit, Michigan (the Detroit terminal), which
terminal is the only facility involved in this proceeding.
At all times material, Respondent has been engaged as a
common carrier in the interstate and intrastate transpor-
tation of passengers and packages via bus. During the
/ Counsel for the General Counsel's posthearing motion to correct the
transcript is approved. Although the transcript in places does not accu-
rately reflect statements made by me, the errors do not affect matters of
substance and are too numerous to be noted herein.
year ending December 31, 1979, which period is repre-
sentative of its operations during all times material, Re-
spondent, in the course and conduct of its business oper-
ations at the Detroit terminal, derived revenues valued in
excess of $50,000 from the interstate transportation of
passengers and freight.
At all times material, Greyhound Food Management,
Inc. (Burger King) has been engaged in the business of
operating a fast food restaurant under the name and style
of Burger King. During the 12-month period ending
June 30, 1980, which period is representative of its oper-
ations during all times material, in the course and con-
duct of its business, Burger King had gross revenues in
excess of $500,000 and during the same period of time
purchased and caused to be delivered directly to its De-
troit restaurant products valued in excess of $50,000 di-
rectly from points located outside the State of Michigan.
It is alleged and admitted, and I find, that Respondent
and Burger King are each employers and/or persons en-
gaged in commerce or in an industry affecting commerce
within the meaning of Section 2(2), (6), and (7), and Sec-
tion 8(b)(4) of the Act.
H. LABOR ORGANIZATION
Although not admitted, the unrebutted evidence in the
record establishes, and I find, that the Charging Party is
a labor organization within the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issue
The issue in this case is whether the Respondent vio-
lated the Act on July 3, 1980, by causing the removal of
the Charging Party's pickets and handbillers from its De-
troit terminal lobby where they had been engaged in
picketing and handbilling in furtherance of a labor dis-
pute with one of Respondent's terminal tenants, i.e.,
Burger King.
B. Background
On December 10, 1977, the Charging Party filed with
the Regional Director a Petition for Certification of Rep-
resentation for a unit of Burger King employees em-
ployed at the terminal restaurant in Case 7-RC-15703.
On January 24, 1980, the Regional Director issued a De-
cision and Direction of Election in that case, and he later
conducted a secret-ballot election on February 22, 1980
Thereafter, the Charging Party filed objections to con-
duct affecting the results of the election and unfair labor
practice charges in Case 7-CA-17550(l). On June 25,
1980, the Regional Director issued, inter alia, an amend-
ed complaint, and an order consolidating it with the rep-
resentation case, and sought therein a bargaining order
based on alleged unfair labor practices of Burger King,
including violations of Section 8(a)(1) and (5) of the Act.
The consolidated matter was heard by Administrative
Law Judge Harold Bernard Jr. in October and Novem-
ber 1980. On May 22, 1981, Judge Bernard issued his de-
cision in which he concluded that Burger King had vio-
lated the Act and recommended that the Board issue a
bargaining order (JD-240-81).
GREYHOUND LINES 1141
C. Facts
On June 27, 1980, Daniel Cantor, organizing director
for the Charging Party, forwarded a letter to Burger
King, in which he demanded immediate recognition and
bargaining to commence on July 2, 1980. Having failed
to obtain compliance with that demand, the Charging
Party instituted picketing at the Detroit terminal on July
3, 1980.
The terminal building occupies a city block in the
downtown Detroit business district. According to the
testimony of Terminal Manager Richard DeBrine, the
street level of the building is "owned" by the Respond-
ent, whereas the upper levels are "wholly owned" by the
National Bank of Detroit. There is no testimony for
what purpose the bank uses the upper levels, whether
bank employees work there or whether there is access to
the lobby area from the upper levels. Respondent rents
or leases space in the lower level of the terminal to sev-
eral other entities. Burger King occupies the northeast
corner where it operates its fast food restaurant, which
faces the intersection of two streets. Burger King is ac-
cessible by a north entrance on Congress Steet, near the
northeastern corner of the block. Adjacent to Burger
King on Congress Street is the main entrance to the ter-
minal. That entrance consists of a wide bank of multiple
doors that lead into a small vestibule, which opens into
the main lobby area. Inside, Burger King is walled off
from the lobby, but is accessible to the lobby by an en-
trance at the northwest corner of the restaurant's south
and west interior walls. That entrance is also accessible
by a long narrow corridor leading from the lobby at the
southwest interior corner of the restaurant to a door on
the east side of the building on Randolph Street. That
corridor is formed by the interior southern wall of the
restaurant and a parallel wall on the other side which is
occupied by the Respondent's customer ticket windows
and ticket purchasers' queues. Inside the terminal on the
street level are other tenants consisting of a tailor/valet
shop, a travelers aid society office, a weight reducing
clinic, a gift shop, and space utilized by a governmental
unit, i.e., Wayne County, Michigan. Terminal Manager
DeBrine testified that Wayne County used the space
"possibly" for county administration. There is no evi-
dence that county employees worked in that space, or
that any county employee was present on July 3, 1980.
The tailor/valet shop, travelers aide office, and gift shop
are accessible from the interior lobby. It is not clear how
access is gained by remaining tenants. However, there
appears to be only three pedestrian entrances to the first
level. All lead to the terminal lobby. There is also an en-
trance to the terminal lobby area located on the western
side of the block on Bates Street via an enclosed corri-
dor running about one-third the length of the building.
The western section of the lobby consists of benches that
occupy space up to the approximate center of the lobby.
The southern wall of the entire lobby parallels the interi-
or bus driveway. Buses enter the driveway on Randolph
Street and exit on Bates Street. Paralleling the bus drive-
way on the entire southern side of the building is a motel
on Lamed Street. There is no direct access from the
motel to the lobby. Baggage handlers and ticket agents
work in the lobby. The gift shop is located immediately
next to the interior restaurant entrance.
At 6 a.m., July 3, 1980, the Charging Party com-
menced picketing the main Congress Street entrance, and
the other exterior entrances, including the bus entrances
and exits. Picketing continued until about 4 or 4:30 p.m.
The pickets consisted of off-duty Burger King employ-
ees, employees of other fast food restaurants, members of
other unions, and other sympathetic nonemployees. No
employee failed to perform scheduled work that day.
About 20 persons engaged in picketing.
At 10:30 a.m., Cantor entered the lobby of the termi-
nal with three sympathetic nonemployee pickets. They
proceeded to station themselves about 10 feet from the
inside terminal lobby entrance to Burger King and pro-
ceeded to distribute leaflets to customers approaching
and exiting the Burger King lobby entrance. Two of the
pickets carried signs bearing various legends, including:
"unfair to labor," "Support the Right to Organize,"
"Union rights are Human Rights." The leaflet set forth
that Greyhound Food Management had been found
"guilty of numerous unfair labor practices" by the "Na-
tional Labor Relations Board," and that it "now violates
yet another law by refusing to bargain with the [Charg-
ing Party] who represents the workers at the Burger
King Restaurant in the terminal." The leaflet also, inter
alia, appealed to the reader to support the "Burger King
Workers' Union" by not eating at the restaurant. The
leaflet was signed by the Charging Party. Cantor testi-
fied on cross-examination that although as of July 3,
1980, Burger King had in fact been found guilty of an
unfair labor practice by the Board, he considered the
action of the Regional Director in issuing a complaint to
have amounted to a finding of an unfair labor practice.
On July 3, 1980, the terminal was extremely busy with
weekend preholiday customers. The waiting area was
filled to capacity and waiting passengers were standing
about. Normally short ticket lines had on that day en-
larged and backed up to the point where customers were
standing in proximity to the point of handbilling. There
is no evidence that the pickets spoke to any non-Burger
King customer, nor that they interfered with the move-
ment of any person in the lobby.2
The pickets were almost immediately approached by a
security guard employed by the Respondent. The guard
phySically ejected Cantor with an effective application of
a hilly club to Cantor's throat. Cantor regained his com-
posure and reentered the lobby and attempted to resume
leafleting with the aforesaid companions. By that time
Terminal Manager DeBrine was informed of the inside
leafleting and he entered the lobby and encountered
Cantor at the area of the leafleting. Converging on the
scene were also Burger King's Detroit general manager,
Dennis Kadet, and Attorney Ethan Vinson who repre-
sented Burger King. Neither Kadet nor Vinson was close
enough to overhear any material portion of the conversa-
tion that ensued between Cantor and DeBrine.
2 At the exterior restaurant entrance, one picket, for a brief time on
one occasion, was seen blocking ingress of a customer by placing a picket
sign across the threshold.
1142 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
DeBrine testified that he had entered the lobby to in-
vestigate what was transpiring; that he was concerned
about what might be occurring because of conduct he
had observed at the outside picketing, and to prevent
any altercation or harassment of Respondent's patrons. It
is DeBrine's convincing, detailed, essentially uncontra-
dieted testimony, which I credit, that he told Cantor that
he was now inside Respondent's place of business, pri-
vate property, where he had no need to picket. He asked
Cantor to leave. Cantor in a loud voice and admittedly
upset after having been prodded at the throat with a
billy club, asserted his right to picket in the lobby. De-
Brine told Cantor that if he refused to leave, the police
would be summoned. Cantor refused. DeBrine informed
a Detroit city policeman whom he had summoned that
he did not wish the pickets to be present in the lobby.
The police officer accordingly removed the pickets
whose presence lasted only about 10 minutes. DeBrine
testified that he did not want the pickets to remain inside
the building because in addition to his fears of the pickets
engaging in conduct similar to the outside pickets which
will be discussed infra, their presence in the busy,
crowded terminal was not conducive to his business Fi-
nally, he saw no need for it as the pickets had covered
all exterior entrances.
ICadet testified that although he was farther from
Cantor in the terminal than Debrine and could not hear
their conversation, except for certain loud assertions by
Cantor of his right to picket inside, he was able to hear a
couple of the pickets who were several feet beyond
Cantor tell the recipients "don't eat at Burger King, the
product is bad." Cantor testified that he heard no such
utterance. Vinson was next to Kadet in the terminal. Nei-
ther DeBrine nor Vinson testified to having heard such
statement. In view of this context and in view of Kadet's
lack of certitude and hesitant demeanor, I do not credit
this aspect of his testimony. There is no evidence that
the pickets inside the terminal engaged in obstreperous
behavior or other misconduct.
With respect to the activity of the picketing of the ex-
terior terminal entrances, Vinson testified credibly that
Respondent's pickets called out to bus drivers who were
about to drive their buses into the terminal: "park it—
stop it—don't go across the lines, we're on strike," and
banged on the side of the buses. Furthermore, they ap-
pealed to the drivers to compel supervisors to drive the
buses into the terminal. Assistant District Manager Doro-
thy Yeikowsld s testified that she observed pickets block
incoming buses, physically strike buses, board buses, and
loudly appeal to the drivers to honor the picket line.
Kadet testified that as incoming buses edged past the
pickets, he saw pickets bang on the sides of buses and
heard them chant: "2-4-6-8- Greyhound Bus negotiate."
DeBrine testified that he observed pickets banging on
buses and heard them scream epithets at the drivers and
chant "2-4-6-8 Greyhound Bus negotiate." I credit the
foregoing testimony that was contradicted only to the
extent that Canto testified that he did not hear pickets
use the word "strike," and that the chant actually was
"2-4-6-8 Greyhound must negotiate." Cantor clearly was
3 The transcnpt mispelled her name as Yerkowsi.
not able to be present at the bus entrances at all times
and in any event, his demeanor was less certain and con-
vincing in this regard.
The Respondent on July 3, 1980, filed with the Re-
gional Director an unfair labor practice charge against
the Union concerning the exterior picketing activities di-
rected at its employees that it contended constituted un-
lawful secondary picketing in Case 7-CC-1113(1). That
charge was resolved by a settlement agreement entered
into on July 21 and 27, 1980, and approved by the Re-
gional Director on July 31, 1980.
Cantor testified that the objective of the picketing in
the terminal was to compel the Respondent to recognize
and bargain with the Charging Party by appealing to
Burger King customers to cease doing business with it.
Cantor testified that over a prior period of 6 months he
had visited the restaurant on 50 to 100 occasions, in the
mornings and in the afternoon, at night, and at midday.
From inside the restaurant he had obserbed both en-
trances. He testified that based on his observation ap-
proximately 85 percent of the customers had entered
through the inside terminal entrance. He testified that
most persons who ate at the restaurant are office work-
ers or workers employed within the terminal who enter
the inside restaurant entrance. The terminal is surround-
ed by highrise, private, and governmental office build-
ings. He did not testify what percentage of persons he
observed were employees within the terminal. Cantor
did not testify about having made any observations of
this traffic on July 3, 1980, prior to picketing inside.
Kadet testified, without challenge, that marketing sur-
veys periodically taken three times a year reveal that
only 14 percent of Burger King's customers are patrons
of Respondent; and that 60 percent of the off-the-street
customers enter by way of the main terminal entrance
and 35 percent of off-the-street customers enter by way
of the restaurant street entrance. Therefore 60 percent of
the off-the-street customers pass through the terminal
lobby for a distance of several yards and then enter the
restaurant through the internal entrance. Presumably the
remaining 5 percent enter from the side doors to the ter-
minal. There is no evidence to indicate what portion of
Respondent's customers consist of off-the-street traffic
and what portion is attributed to persons employed in
the terminal by Respondent, e.g., baggage handlers, driv-
ers, or by the other building tenants, i.e., valet/tailor
shop, gift shop. Cantor testified that he never observed
anyone in the traveler's aid office. The inside corner en-
trance to the restaurant is diagonally across a small por-
tion of the lobby from the large bank of multiple glass
doors that make up the main terminal entrance and vesti-
bule.
Analysis
Respondent and the General Counsel cite the Supreme
Court's Decision in Scott Hudgens v. NLRB, 424 U.S. 507
(1976) (adopted by the Board at 230 NLRB 414 (1977)),
and the Board's decision in Seattle-First National Bank,
243 NLRB 898 (1979), remanded for revision of Order
651 F.2d 1272 (9th Cir. 1980).
GREYHOUND LINES

1143
In the Hudgens case the Court considered whether the
rights of employees to picket, their employer's store lo-
cated in a privately owned shopping center were to be
determined under the criteria of the National Labor Re-
lations Act, under the first amendment to the Constitu-
tion, or a combination of both. In that case employee
pickets were engaged in an economic strike. The owner
of the shopping center caused the picketing employees to
depart by threatening them with arrest. Hudgens argued
that the controlling Court decision was found in NLRB
v. Babcock & Wilcox, 315 U.S. 105 (1956). In that case,
the Court held at 112:
An employer may validly post his property against
non-employee distribution of union literature if rea-
sonable efforts by the union through other available
channels of communication will enable it to reach
employees with its message.
The Court there stated that "accommodation" between
"organization rights" and "property rights" "must be ob-
tained with as little destruction of one as is consistent
with the maintenance of the other." In the .Fludgens case
the Board argued that the employer's property rights and
employee picketing rights ought to have been measured
by the first amendment citing Lloyd Corp. v. Tanner, 407
U.S. 551 (1972). The Supreme Court in Hudgens held
that the employees did not have a first amendment right
to enter the shopping center for the purpose of advertis-
ing their strike against their employer, and that the con-
stitutional guarantee of free expression was not applica-
ble. The Court therefore held that the rights of the em-
ployees were to be determined under the National Labor
Relations Act, and that the Board must resolve conflicts
between Section 7 rights and private property rights
"and to seek a proper accommodation between the two."
(Citing Central Hardware Co v. NLRB, 407 U.S. 543
(1972); Babcock & Wilcox Co., supra.) The Court stated
that a "proper accommodation" depends on the "content
and the context of the section 7 rights being asserted." It
is noted that Central Hardware and Babcock & Wilcox in-
volved organizational activity by nonemployees on the
employer's property, but that in the case before it a
lawful economic strike by employees was involved and
the property rights infringed upon were not those of the
employer of those strikers. The Court remanded the case
to the Board in order that the Board consider it under
the statutory criteria of the National Labor Relations
Act, The Board on remand considered the Court's obser-
vation of the distinguishing factors noted by it, but con-
cluded that they did not preclude a finding of 8(a)(1)
violations. The Board held that economic striking em-
ployees were as entitled t , as were the non-
employee organizers in Babcock & Wilcox. It held, how-
ever, that economic rather than organizational picketing
may require a different application of the accommoda-
tion principle because of the different purpose of each
type of activity. It noted that each activity has a differ-
ent intended audience, i.e., in an organizational campaign
the employees who are accessible by other means are the
object but in an economic strike it is the buying public
and the nonstriking employees who form the intended
audience. The Board found that it would have been un-
reasonably expensive for the Union to reach customers
through media advertising, and that requiring the Union
to communicate its message from a public area 500 feet
away from the store, one of 60 in the center, would have
caused the message to be "too greatly diluted to be
meaningful." It further found that safety considerations
and the "likelihood of enmeshing neutral employers, and
the fact that many people become members of the pick-
et's intended audience on impulse, all weigh against re-
quiring the pickets to remove to public property, or even
to sidewalks surrounding the Mall." Additionally, the
Board considered that the shopping center was open to
the public who were invited to come without express in-
vitation to purchase anything in particular in order to en-
courage impulse buying. The Board held that the proper-
ty rights of the owner must yield to the pickets Section 7
rights.
In Seattle-First National Bank, 243 NLRB 898 (1979),
the Board was obligated to "balance" the private proper-
ty rights of the owner of a 50-story office building and
the Section 7 rights of striking employees of a tenant res-
taurant who sought to advertise the economic dispute be-
tween their union and the restaurant by handbilling
inside the building in the 46th floor foyer at the restau-
rant entrance at lunchtime and dinnertime hours. The
building owner threatened to cause the arrest of the em-
ployees. The Union had also stationed pickets on the
public sidewalks at every entrance to any exit from the
building. The pickets carried placards and distributed
leaflets and explained their position to willing listeners.
The building owner argued to the Board that the strikers
had other available and effective means of communica-
tion with their intended audience, and that its office
building, which contained professional and commercial
clients, was distinguishable from a retail center. The
Board found the employees' clearly protected activity,
i.e., the communication of their dispute with the patrons
of their employer, could not be made effective by picket-
ing and handbilling limited to the ground level public en-
trances. The Board found that the restaurant was only
one of numerous firms and stores in the building and its
customers were only recognizable when they entered the
restaurant, It further found that a "significant" part of
the restaurant's lunchtime patrons worked inside the
building, and that they "may enter [the restaurant] many
hours after passing the pickets on the sidewalk." It found
that other customers may have discovered the existence
of the restaurant only after entering the building, or may
have decided to have lunch in the building on impulse
after entering. The Board decided that the Union's pres-
ence in the 46th floor foyer was "essential to its ability
to effectively communicate with its intended audience."
The Board noted that the handbilling was confined to
the 46th floor foyer, which was open to persons desiring
to use the restaurant, or to visit a stock brokerage tenant,
or to transfer to a highrise elevator, and finally that no
misconduct was involved. The Board held that the pri-
vate property rights of the building owner must yield to
the Section 7 rights of employees, and accordingly that
the threat to cause the arrest of employees engaged in
1144 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the aforesaid strike activity violated Section 8(a)(1) of
the Act.
The United States Court of Appeals for the Ninth Cir-
cuit sustained the Board's findings (supra 651 F.2d at
1276). The court held:
hi the fmal analysis, our approval of the Board's
conclusion that pickets should be allowed on the
46th floor rests on the peculiar nature of picketing.
Even if the union can adequately inform most of the
restaurant's customers of the existence of the strike
without stationing picketers on the 46th floor, the
union cannot fully implement its section 7 rights
without confronting the customers in front of the
restaurant. Picketing is more than mere dissemina-
tion of the information. "The loyalties and re-
sponses evoked by picket lines are unlike those
flowing from appeals by printed words." Hughes v.
Superior Court, 339 U.S. 460, 465. . . (1950).
The court noted: "We do not think the burden imposed
on the Union in organizational cases is invariably appro-
priate in economic strike activity cases" and "unions
should be allowed to picket in support of a strike in an
effective manner whenever possible." The Court, howev-
er, added:
A different accommodation might be appropriate if
some activity not at the core of section 7, such as
area standards picketing, were at issue. See Sears
Roebuck & Co v. Carpenters, 436 U.S. 180, 214. . .
(1978) (Powell J., concurring); but cf. Giant Food
Markets, Inc. [241 NLRB [727 (1979)] (area stand-
ards picketing permitted on private property).
The case was remanded to the Board "with instructions
that it revise its order" pertaining to the nature and
scope of the activity permitted on the 46th floor.
In an earlier decision in Giant Food Markets, 241
NLRB 727 (1979), the Board held that the property
rights of owners or lessees of a small two-store shopping
center must yield to the rights of a union to engage in
informational picketing and handbilling primarily aimed
at the potential customers of the lessee, who are identifi-
able only when they decide to enter the store and who
do so often on impulse. Citing Hudgens, the Board distin-
guished informational picketing from organizational so-
licitation involved in the Babcock & Wilcox and other
cases in that the organizational picketing involves a spe-
cific audience, i.e., the employees to be organized where
other reasonable means of access are available. With re-
spect to informational picketing, the Board found that
"the intended audience is not readily identifiable until it
decides to enter the store and that other such means of
communication cannot be considered 'reasonable' in rela-
tion to their possible effectiveness." The Board further
found that picketing or handbilling at entrances to a
parking lot 250 feet away from the store entrance
"would too greatly dilute the union's message for it to be
meaningful." The Board stated, "This result would
follow not only from the fact that Giant is not the only
store located at the shopping center, but also because
motorists entering the parking lot from the adjoining
public road would be more concerned with safely
making their entrance than with reading a picketing sign
or attempting to receive a handbill at the roadside. The
Board also took into account "the likelihood of a union's
picketing enmeshing neutral employers in its dispute with
a particular store in a shopping center." Further, the
Board noted:
That the property here is open to the public also
distinguishes this case from Babcock & Wilcox and
similar cases where the property is fenced off or
otherwise closed to the general public. (See Justice
Brennan's dissent in Sears, 436 U.S. at 231.) Aside
from Respondent's annoyance with the possibility
that the picket's activities might have an adverse
effect on business at the shopping center, there are
no grounds for finding that the picketing is a nui-
sance.
On review, the United States Court of Appeals for the
Sixth Circuit in Giant Food Markets v. NLRB, 633 F.2d
18 (6th Cir. 1980), stated:
The situation confronting this Court . . . does not
involve a union's attempt to communicate with em-
ployees. In this case, the union was engaged in area
standards picketing and the intended audience was
comprised of consumers and potential patrons. . . .
It is. . . beyond dispute that area standards picket-
ing is lawful and protected under Section 7 of the
Act. . . [Area] standards pickets must be allowed a
reasonable means of communicating with the cus-
tomers. . . . When the consumers potentially come
from a large metropolitan area and cannot be cate-
gorized as a specific group patronizing a specific
type of store, expensive extensive mass media or
mail campai • is should not be required. . . . [The]
union should not be forced to incurr exorbitant or
even heavy expenses. A mass media campaign
would also diffuse the effectivenss of the communi-
cation by being physically removed from the actual
location of the store whose policies are at issue and
would prevent any personal contact between the
union and intended audience.
The Court, however, concluded that the "crux" of the
Board's rationale, i.e., the dilution of message and en-
meshing of neutral employers had "the force of logic"
but was unsupported by facts in the record. The court
noted that no testimony was adduced from pickets at the
scene as to the comparative effectiveness of picketing at
the store entrance and at the parking lot, and no testimo-
ny was adduced as to whether a neutral employer had
been enmeshed or to the reasonableness of picketing at
the alternative locations, i.e., there was no evidence of
traffic flow, congestion in the parking lot, what opportu-
nities existed for conversing with consumers in the park-
ing lot, or why the union considered parking lot picket-
ing to be ineffective. The court accordingly denied en-
forcement of the Board's Order.
The Respondent herein contends that it properly ex-
cluded the Charging Party from its terminal on July 3
GREYHOUND LINES 1145
because first it contends that the picketing was organiza-
tional in nature and the Charging Party had complete
access to employees by virtue of names and addresses
made available to it through the representation case
mechanism. Second, it argues that the picketing in the
terminal was unlawful because it constituted an extension
of unlawful secondary activities that occurred at the ex-
terior entrances. Third, it characterizes the picketing as
"loud, rowdy, and disruptive" of Respondent's business.
Finally, it maintains that picketing in the terminal was
unnecessary and could at most have been directed at
only a "miniscule percentage" of Burger King's custom-
ers.
With respect to Respondent's first contention, the
handbilling and picketing inside the terminal was clearly
undertaken in furtherance of the Charging Party's at-
tempt to seek recognition and bargaining as representa-
tive of Burger King employees. If that objective consti-
tutes "organizational" activity, it does not follow that
Babcock & Wilcox criteria automatically applies. The dis-
tinctions made in the foregoing Board and court deci-
sions between organizational and other types of picketing
and handbilling rest not on the characterization of such
activity per se, but on the intended audience involved in
each type of picketing. Clearly the picketing arid hand-
billing by the Charging Party in the terminal was intend-
ed to reac,h the primary audience of Burger King cus-
tomers. Accordingly, I find Respondent's contention in
this regard to be unpersuasive.
With respect to the argument that picketing in the ter-
minal constituted unlawful secondary activity under Sec-
tion 8(b)(4) of the Act, I find it unnecessary to make any
evaluation of the nature of the exterior picketing at the
bus driveway entrance because I fmd that the interior
picketing comprised a separate and distinct episode. The
interior picketing was not directed to nor did it involve
any neutral employer, employees, or customer of any
neutral employer.
In regard to the argument that the interior picketing
and handbilling was "loud, rowdy, and disruptive of Re-
spondent's business," I find the record evidence supports
no such conclusion. At most, Cantor spoke in a loud
voice in response to DeBrine when Cantor asserted his
right to be present and after the billy club incident.
There is no evidence of any loud or rowdy behavior di-
rected at tenants or customers. Further, there is no evi-
dence that the interior picketing disrupted any business
activity of the Respondent. DeBrine may have feared
that disruption might ensue, but such fears cannot be rea-
sonably based on actual conduct within the terminal.
Furthermore, the external conduct that caused concern
to DeBrine was directed at busdrivers, not at prospective
bus ticket purchasers, nor prospective customers of the
building's tenants. Therefore, there was no basis for De-
Brine to conclude that the pickets were about to inter-
fere with Respondent's internal business activities. The
only basis to argue internal picket misconduct appears to
be an argument not forcefully advanced by Respondent
in its brief, that the handbill contained a factual misrepre-
sentation. To an attorney or one versed in Board law,
the handbill was misleading in that the Regional Director
as an agent for the General Counsel does not adjudicate
but rather prosecutes unfair labor practices. To a layman,
the matter is arguable whether the assertion that Re-
spondent was found guilty by the Board rather than by
the Regional Director as agent for the General Counsel
is a misrepresentation. I do not conclude that the mes-
sage in the handbill contains such gross misrepresentation
as to deprive the Charging Party Party of rights to
engage in activity otherwise protected by the Act. In
any event, DeBrine did not base his decision to eject
pickets on the content of their message.
I conclude that the Union by picketing and handbilling
for the purpose of seeking recognition and bargaining
during the pendency of its representation petition with
the Board and an 8(a)(5) charge constituted protected ac-
tivity under the Act. Laborers Local 840 (Bline Construc-
tion), 135 NLRB 1153 (1962); Teamsters Local 294 (May
& Co.), 199 NLRB 279 (1972). The Charging Party
clearly had a right to engage in recognitional picketing
and handbilling. Whether its statutory right was preemi-
nent to Respondent's property right must be resolved by
evaluation of Respondent's final argument that the inter-
nal picketing was unnecessary and could have at most
been directed to an insignificant portion of persons who
entered an internal restaurant doorway from an origin
exclusive of the main lobby entrance and external restau-
rant entrance.
Was the internal picketing necessary in order that the
Union convey a meaningful, undiluted message to the
prospective customers of the restaurant? The Respond-
ent's terminal lobby, though not a shopping center nor
office building, was open to the public. There were other
shops in the lobby. However, two of those shops, the
travelers aide society and the gift shop, appear to cater
to Respondent's clientele, and marketing surveys reveal
only 14 percent of Burger King's customers are derived
from the bus customers. The evidence suggests that be-
cause of an immense increase in bus patron traffic, on
July 3, 1980, that a greater number of travelers may have
patronized the restaurant. The number and percentage of
those customers is a matter of speculation. There was no
evidence that restaurant patronage was palpably larger
on July 3 than during the period of time when Cantor
made his earlier observations. There is no evidence how
many, if any, weight reducing clinic customers eat at
Burger King. There is no evidence that a significant por-
tion of Burger King's customers are derived from em-
ployees who work in the terminal. There is no evidence
that they were not accessible to external solicitations
when they arrived for work.
Unlike the shopping center cases, there is no evidence
that the bus terminal invites the general public to come
and browse about in the hope that impulse buying may
result, or that alternative picketing sites are located in
remote areas. Unlike the Seattle-First National Bank case,
this is not a situation where a significant number a cus-
tomers or employees of a vast array of commercial ten-
ants may after spending many hours within a huge build-
ing patronize a restaurant secluded within its recesses
often on a subsequent discovery that the restaurant
exists. The evidence herein discloses relatively short dis-
tances between the street and lobby restaurant entrance,
1146 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and that the restaurant is highly visible to the public as it
is prominently situated in a large portion of the building
facing two public streets.
I am unable to fmd that the persons who purchased
bus tickets and boarded buses, or those who purchased
tickets for future departures or persons greeting arriving
passengers, remained in the terminal for so long a period
of time as to have a diminished awareness of the message
and solicitation tendered to them upon entering the ter-
minal. Despite the crowded condition of the terminal
and long ticket queues, there is no evidence that bus de-
partures were delayed or that any extensive waiting peri-
ods were required or that the lines of ticket purchasers
did not move expeditiously. Therefore, I am unable to
conclude that the Charging Party's messages to and exte-
rior confrontations with those persons were diluted by
time or distance. With respect to incoming bus passen-
gers who likely observed the Charging Party's placards
as their buses attempted entry and who may have heard
verbal exchanges between the pickets and drivers, there
is no indication as to what percentage of those persons,
or how many, if any, stopped for a snack before depart-
ing the congested terminal. There is no evidence that the
number of persons arriving in Detroit for the holiday
weekend approximated the large exodus from the city or
that it constituted a significant portion of restaurant pa-
tronage.
With respect to the office workers and others, who
constituted the normal "off the street" restaurant clien-
tele, all entered the building through an exterior door-
way. The vast preponderance entered on Congress
Street. Most came through the main entrance. All were
accessible to the Charging Party's solicitations as they
entered. Certainly, the crowded lobby conditions dis-
couraged browsing therein and there is no evidence that
they were detained in the lobby before entering the res-
taurant. There is no evidence that conditions existed on
the sidewalk, which made solicitation hazardous, difficult
or inconvenient, e.g., pedestrian traffic, crowds, conges-
tion, foul weather. There is no evidence that conditions
on the sidewalk were any more congested or crowded
than they were in the lobby. I cannot conclude that be-
cause a majority of off-the-street customers walked di-
rectly through a small portion of the lobby to enter the
interior restaurant entrance that the Charging Party's
message became significantly less meaningful or diluted
by the traversal of the short distances involved. It may
have been easier for the Charging party to have more
precisely identified the potential customers of the restau-
rant who entered at the interior doorway and that loca-
tion would have afforded optimum efficiency. However,
the Charging Party was not relegated to the exterior
access because the Respondent refused to permit interior
access. Rather, the Charging Party chose to picket and
leaflet within the terminal, as a supplementary action,
several hours after it had covered all exterior entrances.
The record in this case contains no satisfactory explana-
tion about why it was necessary to solicit incoming off-
the-street customers twice. Indeed, Cantor proffered no
such explanation either to DeBrine or in his testimony in
this proceeding.
With respect to the suggestion that the alternative
picketing and leafleting locations would tend to enmesh
neutral persons, thus making internal conduct preferable,
there is no evidence that picketing and handbilling inside
the terminal in close proximity to Respondent's custom-
ers and immediately adjacent to the gift shop with plac-
ards bearing generalized slogans, constituted activity any
less likely to involve neutrals than did the exterior pick-
eting at pedestrian entrances. Moreover, this is not a situ-
ation where removal of the interior pickets would have
effectuated exterior picketing. There was no choice of al-
ternatives involved. The Union sought to effectuate pick-
eting and handbilling at all entrances, both exterior and
interior.
As I understand the relevant court and Board prece-
dent, it is not sufficient for the General Counsel to
merely demonstrate that the Charging Party was exercis-
ing its statutory rights or that it sought to exercise those
rights at an optimum location. Rather, a balancing of Re-
spondent's private property right with that of the
Union's statutory right must be effectuated. Such a bal-
ancing can be made only upon a demonstration of need
for the Respondent's constitutional property rights to
yield the Charging Party's statutory rights. That need
must be proven by factual evidence. Herein it was shown
that the Charging Party was engaged in protected activi-
ty and calculated to supplement its efforts under Board
processes to obtain recognition and bargaining. Howev-
er, I am unable to conclude that at 10:30 a.m. on July 3,
1980, it was necessary for the Charging Party to aug-
ment its public picketing and handbilling by picketing
and handbilling within the Detroit terminal in order to
convey a meaningful, undiluted message to its intended
audience. Accordingly, I conclude that the complaint
should be dismissed in its entirety.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The complaint is dismissed in its entirety.
4 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the fmdings, conclusions, and recommended
Order shall, as provided m Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them 'hall be deemed waived for all pur-
poses.